QBE Insurance (Australia) Ltd v Australian Broadcasting Commission [2015] NSWSC 1585

Supreme Court New South Wales

Medium Neutral Citation: QBE Insurance (Australia) Ltd v Australian Broadcasting Commission [2015] NSWSC 1585 Hearing dates: 26 October 2015 Date of orders: 26 October 2015 Decision date: 26 October 2015 Jurisdiction: Common Law Before: Campbell J Decision: Dismiss the proceedings brought by QBE with costs; Direct that QBE file with the Registry within 24 hours a form of summons seeking the relief sought this afternoon together with their affidavits after they have been put in proper form and to tender the relevant fee for the commencement of these proceedings at the same time. Catchwords: CIVIL – urgent injunction to prevent broadcast of story on ABC's 7:30 Report – where VCAT proceedings are commencing the following day between Ms Ingram, the subject of the story and QBE – whether broadcast will effect fairness of hearing – whether broadcast a contempt of court by Ms Ingram

CIVIL – jurisdiction – interim injunction – power of this Court to grant injunction with respect to proceedings in an interstate tribunal Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Category: Procedural and other rulings Parties: QBE Insurance (Australia) Ltd (Plaintiff) Australian Broadcasting Corporation (Defendant) Representation: Counsel: Mr D R Sibtain (Plaintiff) Mr A T S Dawson (Defendant)

Solicitors: Gilchrist Connell, Solicitors (Plaintiff) Kathryn Wilson, Lawyer (Defendant) File Number(s): 2015/314358

EX TeMPORE Judgment (REVISED) 1. I am dealing with an urgent application made by QBE Insurance (Australia) Ltd (QBE) to obtain an interim injunction restraining the Australian Broadcasting Corporation (ABC) from broadcasting a story on the 7.30 Report this evening concerning a claim on a travel insurance policy issued by QBE to a traveller, a Ms Ella Ingram. Ms Ingram is suing QBE in the Victorian Civil and Administrative Tribunal (VCAT), in its Human Rights Division Anti-Discrimination List in respect of QBE's denial of her claim under the policy. QBE say that, as I understand it, on its proper construction, the policy excludes claims based upon a mental illness, which I have assumed for the purpose of these proceedings is the nature of Ms Ingram's claim. The matter has come before the Court, as these things do, very urgently. It is now 6:50 pm as I commence my reasons. 2. QBE's concern is that the publication of the story tonight, on the eve of the commencement of the hearing in VCAT tomorrow, is likely to prejudice its defence. In her affidavit, Ms Genevieve Staff, a corporate solicitor employed by QBE, expresses her concern that any publication before judgment in VCAT may have an effect on the fairness of the hearing; it may affect the witnesses' willingness to give evidence; and it may affect the Tribunal member's impartiality in hearing and determining the claim. 3. Moreover, Mr Sibtain, of learned counsel, relies upon the principles concerning contempt of court in the sub judice sense in Y and Z v W (2007) 70 NSWLR 377; [2007] NSWCA 329. In particular, he argued that the broadcast of the programme tonight is an attempt by the claimant in VCAT to put improper pressure on QBE to defer it from fully litigating its defence. Moreover, Mr Sibtain argues that, possibly, bearing in mind the interlocutory nature of the application, a contempt involving an obstruction of the administration of justice in as much as the claimant in the VCAT proceedings is putting improper pressure on QBE either to settle on disadvantageous terms or to withdraw from its defence because of the adverse publicity which might be engendered because of the publication of only one side of the story on television. 4. The application is made on two bases. First, the Court Suppression and Non-publication Orders Act 2010 (NSW) and secondly, alternatively, by invoking this Court's inherent jurisdiction to deal with a contempt of court. Mr Sibtain invoked s 10 of the Act which enables a court to make an interim order without assessing the merits of the claim, provided the court is in possession of the terms of the application urgently either tonight or tomorrow. 5. It seems to me, however, that as Mr Dawson, of learned counsel, argues I have no power to make an order under the Act. The power conferred by s 7 enables me to make suppression or non-publication orders only in proceedings before the Court, that is to say, proceedings before this Court. I think that point is well made and I am not persuaded that I have power under the legislation to make an order in respect of proceedings in an interstate tribunal. Section 4 of the Act preserves the Court's inherent jurisdiction. 6. Turning to that second question, the orders, as I have said, are sought on an interim basis until further order when there could be a fuller hearing of the issues. Mr Sibtain argues in the circumstances limited information is available, but from the evidence I have read I should be satisfied on the relatively low threshold normally applicable to the making of interim injunctions that QBE has shown a fairly arguable case in relation to those grounds of contempt I referred to earlier. 7. It is not said that the ABC itself is a contemnor, or would be a contemnor if the programme were broadcast. Rather, it is said by presenting Ms Ingram's side of the story it will facilitate what appears to be, again at the relatively low level applicable, an attempted contempt by her in the way I have outlined earlier in these reasons. 8. Mr Dawson argues equally I have no jurisdiction to make any order in respect of proceedings in VCAT. He argues that the inherent jurisdiction of this Court is confined to making orders in relation to the administration of justice in New South Wales. He argues that it is obvious that this Court would have no jurisdiction to control proceedings interstate. 9. I did raise with him the question of the application of the jurisdiction of courts cross-vesting scheme applicable throughout the Commonwealth, but I am not convinced that would give me the power that QBE seeks to invoke. 10. It seems to me whatever the uncertainty about this Court's jurisdiction in relation to interstate proceedings, it is at least arguable that the Court has jurisdiction given that QBE, a national corporation doubtless, is based here in Sydney and that the ABC likewise is amenable to this Court's jurisdiction by having offices here. The programme is to be broadcast in and from New South Wales. 11. Naturally, an important interest, which the ABC invokes, is freedom of the press, an aspect of freedom of speech. However, if the legal principles of contempt of court are successfully invoked by the applicant, then that important, indeed fundamental, right must give way. 12. However, having said that, I bear in mind that, as Ipp JA said in Y and Z v W at [39], the standard of proof in an action for this type of contempt is the criminal standard of proof. That, to my way of thinking, must affect the level of the threshold that has to be met by QBE in persuading me that they have proved an entitlement to an interim injunction. Moreover, Ipp JA pointed out that it is necessary to establish, in a case of this nature that the broadcast, as a matter of practical reality, has a tendency to interfere with the course of justice in a particular case. 13. I think that QBE does have a legitimate concern that its standing as a responsible corporate citizen may be called into question by presentation of a broadcast that may be one-sided. I also accept that QBE, given the fact that proceedings are to commence tomorrow, would prefer not to comment "on air" itself in relation to the subject matter of the dispute. 14. I have limited information about the constitution of the Tribunal. It seems to me, however, that it is likely that, in an anti-discrimination matter, VCAT would be constituted either by a serving County Court Judge or equivalent and that such a person is unlikely to be adversely affected in the discharge of his or her office by anything broadcast by the ABC tonight even if that person actually happened to see it. 15. It is not clear to me as a practical matter how the witnesses QBE are likely to call, or indeed the witnesses likely to be called on behalf of Ms Ingram might be affected by the broadcast. Lay witnesses will be restricted giving evidence of what they saw, heard or otherwise perceived, notwithstanding the latitude given to VCAT by its governing legislation. Expert witnesses will be restricted to giving evidence on the basis of opinions based upon their expert knowledge and are hardly likely to be given the opportunity to be affected by seeing something on the television tonight. 16. I understand that both parties are somewhat affected by the necessarily urgent circumstances in which the application has come before the Court in their ability to present evidence. I allow myself to comment if my reasons do less than justice to the arguments of counsel, it is because of the pressure of deciding the case on an urgent basis in the Duty List. However, for the reasons I have given, I am not satisfied that a case has been made for an interim injunction in respect of the broadcast tonight and I dismiss QBE's application and the proceedings with costs. 17. I direct QBE to file with the Registry within 24 hours a form of summons seeking the relief sought this afternoon together with its affidavits after they have been put in proper form and to tender the relevant fee for the commencement of these proceedings at the same time.